REGINA v VAN DE HAAR

CASES CITED: R v Way [2004] NSWCCA 131 at [176]; 60 NSWLR 168 at 199

COUNSEL: Mr P Barrett (Crown) Mr C Smith (Applicant)

SOLICITORS: S Kavanagh (Crown) S E O'Connor (Applicant)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 2005/2018

SULLY J ADAMS J

17 AUGUST 2006 REGINA v Dean Allan VAN DE HAAR Judgment

1 SULLY J: I agree with Adams J. 2 ADAMS J: The applicant, Dean Allan Van De Haar, seeks leave to appeal from sentences imposed upon him by the District Court on 3 March 2004. He was charged as follows - "Counts 1-3: Break and enter with intent to steal contrary to s 113(1) of the Crimes Act 1900, carrying a maximum penalty of ten years' imprisonment: 1 between 24 and 25 February 2004; 2 10 April 2004; and 3 between 28 June and 1 July 2002. Counts 4-7: Break enter and steal contrary to s 112(1) of the Crimes Act 1900 carrying a maximum penalty of fourteen years' imprisonment: 4 between 27-29 September 2003; 5 between 24-26 October 2003; 6 18 October 2001; and 7 between 3-5 April 2004. Count 8: Threaten to use an offensive weapon (syringe) to prevent lawful apprehension committed on 9 June 2004, an offence under s 33B(1)(a) of the Crimes Act 1900, carrying a maximum penalty of twelve years' imprisonment. Form 1 offences occurring on 9 July 2004, taken into account on count 8: 1 resist police officer in the execution of his duty; 2 assault police officer; and 3 possess prohibited drug (methylamphetamine). 3 The applicant pleaded guilty to the offence in count 8 on 3 November 2004 and to all other counts on 22 December 2004. He was sentenced as follows - Count 1: Imprisonment for two years expiring on 2 March 2007 with a non-parole period of eighteen months commencing 3 March 2005 and expiring on 2 September 2006; Count 2: Imprisonment for two years expiring on 2 May 2007 with a non-parole period of eighteen months commencing on 3 May 2005 and expiring on 2 November 2006; Count 3: Imprisonment for two years expiring on 2 July 2007 with a non-parole period commencing on 3 July 2005 and expiring on 2 January 2007; Count 4: Imprisonment for two years expiring on 2 September 2007 with a non-parole period of eighteen months commencing on 3 September 2005 and expiring on 2 March 2007; Count 5: Imprisonment for two years expiring on 2 November 2007 with a non-parole period of eighteen months commencing on 3 November 2005 and expiring on 2 March 2007; Count 6: Imprisonment for two years expiring on 2 January 2008 with a non-parole period of eighteen months commencing on 3 January 2006 and expiring on 2 July 2007; Count 7: Imprisonment for two years expiring on 2 March 2008 with a non-parole period commencing on 3 March 2006 and expiring on 2 September 2007; Count 8: Imprisonment for three years with a non-parole period of eighteen months commencing on 3 February 2007 and expiring on 2 August 2008. 4 The consequence of these sentences was the imposition of an overall sentence of five years six months and twenty-five days with a non-parole period of four years and twenty-five days. 5 The learned sentencing judge found that special circumstances existed justifying a variation of the statutory ratio arising from the partial accumulation of the sentences and adjusted the sentence he imposed on count 8 to produce an accumulated non-parole period representing 74% of the effective overall sentence. 6 It is important to note that the sentence imposed on count 1 commenced on the date of sentencing, namely 3 March 2005. At that time the applicant was serving a term of imprisonment of two years commencing 9 July 2004 with a non-parole period of eighteen months. It follows that the applicant was given the benefit of a significant degree of concurrency in respect of the sentence being served at the time of the commencement of the period of imprisonment imposed on the current offences. 7 A number of other significant matters should be noted. The offence in count 4 was committed while the applicant was on parole after serving the non-parole period of a home detention order for other unrelated break, enter and steal offences. Counts 1, 2 and 7 were committed whilst the applicant was on bail for another break, enter and steal offence. Following his commission of those offences (respectively on 24-25 February, 10 April and 3-5 April 2004) the applicant failed to appear at Wollongong Local Court on 5 May 2004. A first instance warrant was issued for his arrest. When police attempted to execute this warrant on 9 June 2004, the offence in count 8 was committed. The applicant was arrested one month later on 9 July 2004 on the count 8 offence pursuant to the warrant. Not surprisingly, further bail was refused and he was in continuous custody since that date. The term of imprisonment to which I have already referred which had been imposed prior to the applicant's being sentenced on the current offences commenced on that date, namely 9 July 2004.

The Facts 8 The learned sentencing judge described the facts of the break and enter offences as "relatively straightforward" and did not think it necessary to describe them in detail. His Honour said, "They involved breaking and entering both commercial and domestic premises and stealing money, jewellery and small appliances". On one occasion a person was present in the premises and in other cases the offences were aggravated because of the value of the property stolen. In respect of count 8, rightly considered by the learned sentencing judge as the most serious of the offences for which the applicant was facing sentence, his Honour stated as follows - "On 9 June 2004 plain clothes police received information that the prisoner was at an address in Berkeley. At this time he had failed to appear in court and warrants had been issued for his arrest. The police went to a garage at the rear of the premises and saw the prisoner with three other men. They identified themselves as police and informed the prisoner, whom they recognised, that he was under arrest. He denied that he was the person wanted and, when police insisted, he became agitated and aggressive. Police told him to show some identification if he was not the person they were seeking. The accused then produced two syringes with caps over the needles. He stood up from the lounge where he had been sitting and approached the police holding the syringes at chest height with the needles facing the police. At this time he was about three metres from the police. He swore at the police and they became concerned as he approached them. They backed out of the room but the accused followed and approached as close as one metre. The accused then left the premises and police were unable to arrest him, but on the same evening police arrested the prisoner at a unit in Corrimal."

The last sentence reveals an error. The applicant was in fact arrested a month later at Corrimal. Nothing turns on this.

The sentences below 9 The learned sentencing judge noted in his reasons for sentence that, of the break and enter offences, three attracted a maximum sentence of fourteen years' imprisonment because of their aggravated nature. In the circumstances, however, his Honour did not regard them as particularly serious aggravating circumstances. This approach significantly advantaged the appellant. Although some argument was addressed in this Court on his behalf contending that the learned sentencing judge did not give sufficient attention to the difference in maximum penalties for the break and enter offences, there is no substance in this complaint. 10 The learned sentencing judge gave the applicant in respect of each sentence a discount of 25 per cent for the utilitarian value of the pleas, noting the applicant had pleaded guilty and also had volunteered information which led to him being charged with many of them. I would note in this respect that, as I read the applicant's interview with the police, very little information indeed was provided by the applicant. This finding of the learned sentencing judge was very generous and no complaint can be (or in fact was) made as to the extent of the discount. In respect of count 8, a utilitarian discount of 25 per cent was also allowed with an adjustment to the statutory calculus for the non-parole period made, as already mentioned, by virtue of the special circumstance arising out of the accumulation of sentences. His Honour said that he would "otherwise be very hard pressed to find special circumstances in this case, except possibly for the need for supervision for release on parole, but even this is, at best, arguable". The sentence on count 8 commenced on 3 February 2007 "allowing for the seven months which Mr Van de Haar has already spent in custody in respect to this matter". It is agreed between the parties that this understated the period of pre-sentence custody by some twenty-five days and that an adjustment should be made. I will return to this matter in due course.

Subjective circumstances 11 The learned sentencing judge had before him a report of the Probation and Parole Service, and a detailed psychological assessment report prepared by Ms Emma J Collins. The applicant's father also gave evidence. The following is a summary of the relevant material, which was not in dispute. The applicant is the youngest of four sons. His father, who gave evidence on his behalf, is a respected businessman with a number of businesses also active with a Salvation Army organisation involved with the rehabilitation of drug offenders. The applicant felt that he was discriminated against as a child and became alienated from his parents. He began to experiment with drugs and alcohol at an early age, smoking cannabis whilst still at primary school. The applicant left school half way through year 10, then completing one year of a locksmith course and two years of a carpentry apprenticeship. He abandoned these courses because of increasing drug usage. He was employed for long periods in his father's businesses. Although his father offered to employ the applicant upon his release, the applicant told Ms Collins that he did not want to work for his father because they argued. The applicant has had several relationships and was at the time of sentencing in a relationship with a woman whom his father described as "supportive". They have two children and the applicant has indicated a desire to be a good father. 12 The applicant's history of substance abuse includes heavy binge drinking, long periods of heavy cannabis use and also the use of intravenous heroin. He has unsuccessfully attempted rehabilitation several times. At the time of the offences he was using the form of methylamphetamine commonly known as "ice". The diagnosis by Ms Collins of poly-substance use disorder was inevitable. 13 During 2004 the applicant was involved in a serious motor vehicle accident (while trying to avoid police) and suffered head injuries. Ms Collins reported a history of behavioural symptoms of acquired head injury and thought it possible that he might have suffered some minor frontal lobe damage. She considered that this had "significantly impacted upon his day to day functioning", signified by a recommencement of drug use, reactive depression and a deterioration in his mental state "to a degree that could indicate a prodromal mental illness". The psychologist thought that the applicant "most likely…is evidencing the effect of an acquired head injury and, if so, these could be expected to moderate with time and support over the next six months to a year". She thought that there was a consistent pattern of impulsivity and irrational behaviour, again likely affected by the head injury. She thought that it would be beneficial for him to undergo specific psychiatric assessment to rule out the possibility that head injury is responsible for "the pseudo-psychotic phenomena he is reporting". It appears that to date no such psychiatric assessment has been carried out. Ms Collins described the applicant's mental state as "poor" and commented that this "would be exacerbated by incarceration". She was concerned about the applicant's reporting of potential auditory hallucinations and paranoia. Aside from mentioning the fact of the motor accident and the consequential head injuries, the learned sentencing judge referred only to Ms Collins' opinion that "this had seriously affected his adjustment" and noted that "she says that he needs intensive support and counselling in order to achieve rehabilitation". 14 The learned sentencing judge also noted (and I think accepted) the evidence of the applicant's father that he had noticed a marked change in his son's attitude since he has been in custody. This was clearly positive but somewhat counter-balanced by the additional evidence, also noted by his Honour, "that his son seems to be able to give up drugs only when he is in custody". 15 The applicant's long criminal record dating back to 1993 was referred to by his Honour, who noted that it included drink-driving offences, drug offences and a number of break enter and steal offences, among others. His Honour noted that the applicant's then current sentence of two years with an eighteen months non-parole period is the longest period he had spent in custody and thought that, in this respect, "he is extremely lucky as the courts have already been able to recognise his drug problem and give weight to it". 16 It seems to me, with respect, that his Honour's summary of the objective features of the applicant's case, though brief in some respects, was adequate and fair.

Ground of appeal 1: The applicant's pre-sentence custody was wrongly calculated. 17 As has been mentioned, the Crown concedes this ground of appeal. However, the applicant and the Crown do not agree as to the mode by which the sentence should be adjusted. On behalf of the applicant it is submitted that the preferable approach would have been to backdate the overall sentence to 9 July 2004, which was the date upon which the applicant was taken into custody. Such an approach, which would, in effect, reduce the overall sentence by almost eight months and absorb completely the sentence which the applicant was serving as at the date he was sentenced in the District Court, would nullify the learned sentencing judge's intention of accumulating, to some extent, the sentences he intended to impose upon that earlier sentence. The Crown, on the other hand, submits that the sentences on the break and enter counts should remain unchanged but the sentence on count 8 should be adjusted to take into account the error. This would result in that sentence commencing on 11 January 2007, with a non-parole period expiring on 10 July 2008, with the total sentence expiring on 10 January 2010. It seems to me that the Crown submission should be accepted, subject to minor adjustment as indicated.

Ground 2: The sentencing judge erred in failing to give effect to the finding of special circumstances. 18 I have already referred to the learned sentencing judge's remarks in respect of special circumstances. It is obvious that an adjustment needed to be made so that the relationship between the overall sentence and the overall parole period would reflect the statutory ratio. The real question is whether there were other circumstances than the mere accumulation of sentences which required a further adjustment of the non-parole period. It is clear that his Honour considered that no such additional circumstances warranted further adjustment. On behalf of the applicant it is submitted that, having found that special circumstances existed, his Honour should have done more than merely adjust the final sentence in the series to restore the statutory ratio. It is, in effect, submitted that this was to undercut the finding that special circumstances existed. It seems to me that this submission mistakes the reasoning of his Honour which was, in effect, that there were no special circumstances in the case that justified a variation of the statutory ratio but that an adjustment was required in the last of the sentences to be served to ensure that the applicant did not serve a greater proportion of the overall sentence than the statutory ratio indicated.

Ground 3: The sentencing judge erred in failing to have regard to the fact that the applicant is serving, or is likely to serve, his sentence in protective custody. 19 The evidence in respect of this was somewhat exiguous. The Probation and Parole officer's report stated - "Mr Van de Haar is currently in the protection wing at the MRRC, due to stated 'dramas' with other inmates at Lithgow Correctional Centre. Being in this wing, the offender has little, if any, access to Offender Services and Programmes (OS&P) staff. However, once his sentencing is finalised, Mr Van de Haar should be transferred to another correctional centre where he can have greater access to OS&P staff. The offender stated that he intends to make full use of services available to hopefully return to a drug-free lifestyle." 20 The applicant's father said in evidence when asked what changes he had seen in his son since the head injury - "He complains of headaches. He certainly has a difficult time in gaol in the isolation wing. I think he certainly has to deal with all the things that have happened in his life now that his head is clear. But he does have extreme headaches. The accident I believe has affected him in little ways. But I still think the drug issue is still the biggest problem Dean has." 21 My impression of the evidence is that his Honour was left in the position that the applicant's protective custody was temporary and a return to ordinary prison life was expected. This view is fortified by the omission in the submissions made on the applicant's behalf to mention the nature of his custody, let alone press its significance for the sentencing process. 22 It is submitted on behalf of the applicant that his Honour did not take into account the custodial situation of the applicant, since his Honour did not mention it. In the circumstances, the material before the learned sentencing judge would not have justified any significant mitigation in the sentence otherwise appropriate. Nor am I satisfied, at all events, that his Honour ignored this aspect of the evidence. It is, of course, appropriate to take into account the prospect that a prisoner will serve his or her sentence in conditions which are more onerous than those of the general run of prisoner because he or she is on protection. Even assuming that the learned sentencing judge did not take the issue of protection into account, I am not persuaded that the evidence was such as to require him to be "satisfied that the sentence will in fact be served in conditions which are more onerous": R v Way [2004] NSWCCA 131 at [176]; 60 NSWLR 168 at 199. 23 What has been said above requires some qualification. There was some evidence, as I have mentioned, from the pre-sentence report as to the limitations of protective custody with the expectation, however, that this would be short-lived. It seems to me that this makes admissible the applicant's affidavit in so far as it deals with this subject matter since, if his Honour acted upon an expectation that protection would shortly end, an expectation which events showed to be wrong, the applicant should be able to show this to be so. Accordingly, I would read paragraphs 1 to 8 of the applicant's affidavit. In substance, the applicant deposes that a little over two months after he was sentenced on 3 March 2005 he was transferred from Long Bay Hospital to Junee gaol where he has been kept ever since. He said that he was on normal protection which limits his movements and the gaols to which he can be transferred. No information about his limited movement is given but he says he cannot go to Sydney to be closer to his family because of his protection status. At the same time, he says that he has been working as a sweeper and attending Narcotics Anonymous' meetings weekly for the three months before his affidavit was sworn (25 January 2006). He says that when he arrived at Junee he applied to do a "Think First" course designed to help people with drug problems and also undertake an intensive fifteen-week programme relating to drug problems (the Nett programme). He says that no places had become available as yet although he meets with his case officer every week. He says that he has ceased taking any medicine because "I was feeling okay and did not want to take any medicines or mood-altering substances unnecessarily…[and since] then I have generally continued to feel okay". 24 It appears, therefore, that the applicant is still on protection and that one of the effects of this status is that, for some reason, he is unable to move to a gaol in the Sydney area and thus have greater contact with his family. He has two children aged three years and one year as at December 2004. He is also obviously close to his father who is anxious to help him as much as possible. I will return to this matter in due course.

Ground 4: The sentence is manifestly excessive. 25 The general submission made is that objectively the individual break and enter offences were unsophisticated, lacking in planning and involved relatively modest amounts of property. That submission may readily be accepted. In respect of count 8, that was committed after the applicant had been injured in a motor vehicle accident as a result of which he suffered brain damage involving persistent headaches, sleep disturbance, mood swings, increasing aggression, dizziness, poor memory and racing thoughts. The psychologist noted that these symptoms "are often consistent with those found following acquired brain injury", commenting further that stimulant drugs would exacerbate the deteriorating mental state "and leave a person open to increasingly irrational and impulsive behaviour". 26 It is also submitted that there was insufficient weight given to the subjective circumstances of the applicant. 27 With respect, it does seem to me that the learned sentencing judge's description of the applicant's mental state is cursory. Furthermore, the context for his Honour's brief mention of this issue is the applicant's "adjustment", a reference I think by the psychologist to the applicant's ability to cope with continued abstinence from drug use and ability to function in the gaol environment. Counsel for the applicant has rightly called attention to the significance of the applicant's head injury to explain the repulsive and aggressive behaviour exhibited by him when police attempted his arrest on 9 June 2004. The applicant's criminal record shows no convictions involving violence. The pre-sentence report discloses that the applicant attributed his paranoia and aggression to the use of methamphetamine ("crystal meth") as a result of which he had "gone crazy". The applicant's father, whose evidence strikes me as completely candid, indeed, down to earth (and with which the Crown did not take issue) believed that the applicant's conduct arose out of a combination of drug use and the head injury he suffered in the car accident, although he attributed the greatest influence to the former. There was also evidence of remorse and some prospects for rehabilitation providing, of course, he can maintain his resolve to avoid drug use when he is returned to the community. It would have been preferable had the learned sentencing judge mentioned these factors but I would not infer from the fact that he did not do so that he did not take them into account, especially having regard to his Honour's reference to the need for supervision after release on parole. On the whole, the evidence about the prospects for rehabilitation was not strongly supportive of the applicant whilst, accepting that he was remorseful, his apparent inability to control his drug use meant that this feature could not be given much weight. However, as I say, I would not be prepared to infer that the learned sentencing judge ignored it. 28 Considerations weighing against any leniency included - · One of the offences was committed while the applicant was on parole after serving a period of home detention. · Three of the offences whilst the applicant was on bail for a further offence of break and enter. · The applicant had ten other offences of break and enter in his history including the one for which he was serving a sentence at the time of the current sentences, together with similar offences involving larceny, goods in custody, possessing house and car breaking implements and stealing from the person. · The number of offences involved. · In relation to count 1, the sentence needed to reflect three further offences, of which two involved resisting and assaulting a police officer in the execution of his duty. 29 It may be accepted that the breaking and entering offences were not particularly serious offences of their kind but it seems to me that the sentences imposed reflected this aspect.

Outcome of the appeal 30 In my view, the only significant points in the applicant's case concern the agreed error in calculating the applicant's period of incarceration and the fresh evidence concerning the effect on the applicant of the protective custody in which it is likely he will need to serve most if not all of his sentence, having regard to the continuing risk to his mental health as described by the psychologist and the importance of ensuring adequate supervision of the applicant when he is released. So far as the first is concerned, I would propose that the sentence on count 8 should be backdated to take into account the additional twenty-five days' pre-sentence custody so that it would commence on 8 January 2007. 31 The fact that the applicant, by virtue of his custodial status is, as a practical matter, precluded from continuing contact with his girlfriend and young children, as well as his father, was not anticipated by the learned sentencing judge. Having regard to the considerable leniency extended to the applicant by his Honour, I am doubtful that, had his Honour been aware of the present situation, he would have regarded it as a special circumstance justifying a reduction of the applicant's non-parole period. At all events, I have formed the view that a reduction in the non-parole period cannot be justified and that to do so would be to impose a sentence that was not warranted in law. 32 However, having regard to the importance of the applicant's continuing contacts with his family to the applicant's rehabilitation and his coping with the prison environment, I think that the Court should recommend that, subject to the exigencies of proper management, the Corrective Services Commission should endeavour to provide protective custody for the applicant in a prison closer to the Sydney metropolitan area. 33 I propose, therefore, that leave to appeal should be granted, the sentence on count 8 should be varied to commence on 8 January 2007 but that otherwise the appeal should be dismissed. The Registrar should forward a copy of this judgment to the Commissioner for Corrective Services, bringing his attention to the Court's recommendation.

29/09/2006 - Clarification of orders. - Paragraph(s) At the end of paragraph 17 the words "subject to minor adjustment as indicated" have been added.

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